Taking Note

A Century Foundation Group Blog

October 01, 2009

Will Preserving the “Status Quo” Resolve the Abortion Debate?

by Naomi Freundlich

Earlier this year when President Obama told the graduates of Notre Dame that the country needed to find “common ground”
on abortion, it’s likely he envisioned national reconciliation on an
issue that has fiercely divided the country for decades. But when it
comes to health care reform, Democrats are hoping to find “common
ground” through balky legislation that would extend the reach of the
current ban on federal funding for abortion to include all plans that
participate in health insurance exchanges.

These provisions, contained in the Senate Finance bill and also in the Capps Amendment
passed by the House Energy and Commerce Committee, are designed to be
“abortion neutral,” meaning that they don’t restrict or expand abortion
rights beyond the status quo. The status quo is as follows: Although
Roe vs. Wade ensures access to safe, legal, abortion; since 1976, the
Hyde Amendment has banned federal funding for abortion except in the
case of rape, incest or threat to the life of the mother. This ban
currently applies to Medicaid beneficiaries and also to federal
employees and military personnel.

Obama has already said that
abortion will not be included in any minimum benefits package mandated
by the government. The Senate Finance and House Energy committee reform
plans reiterate this provision; but they do allow insurers who choose
to offer abortion as a covered service to participate in the exchanges.
They just can’t use any federal funds to help pay for these services.

In the current schemes for health reform, many low and
middle-income Americans will qualify for federal subsidies to help them
purchase insurance on the exchanges. The government will not send these
subsidies to individuals, but rather the funds will be paid directly to
insurers. Plans that want to include some abortion services— 87% of
private plans currently do offer these benefits—will have to segregate
federal funds (derived from subsidies) from those paid directly by plan
participants through premiums. If a woman enrolled in one of these
plans elects to have an abortion, benefit payments can only come from
the private, premium fund. This segregation of federal funds already
happens in the 17 states that currently use state monies to cover
abortion for Medicaid recipients.

The Capps Amendment goes
further to try to achieve neutrality: Every exchange must include at
least one plan that offers abortion benefits and at least one plan that
does not. State laws requiring parental consent, mandatory waiting
periods, informed consent and other restrictions on abortion will not
be preempted by federal legislation. Finally, conscience clauses that
allow doctors and hospitals to refuse to perform or even talk about
abortion will be strengthened to prevent insurers from dropping these
providers from their plans.

Rep. Lois Capps (D-CA) says that she
is pro-choice and has long opposed the Hyde Amendment. So why is she
championing legislation that would extend the Hyde restrictions further
and restrict lower-income women’s access to a popular—and legal—medical
service?

The answer from her office; “This is not the place to
re-debate the abortion issue. What we could get consensus on is this
common ground language that maintains the status quo.” In fact, Capps
and other pro-choice Democrats in Congress are fighting for the hearts
and minds of the 30 or so socially-conservative Democrats who have
threatened to oppose any health reform bill that allows government
funding of abortion. This week, the New York Times ran a front page story that declared, “the debate over health care in Congress is becoming a battlefield in the fight over abortion.”

The Times article
goes on to describe efforts by hard-line abortion opponents like Rep.
Bart Stupak (D-MI) and Senator Orrin Hatch (R-UT) to garner support in
Congress for more extreme amendments that would prevent all insurance
plans that participate in the exchanges from providing any abortion
coverage—even if they use segregated funds. In this scenario, women
could only obtain abortion coverage if they used their own money to buy
a “rider” to their insurance policies.

Considering the fact
that most women don’t plan to have abortions—thus the term, unintended
pregnancy—it’s hard to imagine that such “riders” will be a popular
option for anyone but the most committed pro-choice advocates. Also,
this concept clearly discriminates against lower-income women who would
be hard-pressed to pay these additional premiums. The fear is also that
insurers would find it easier to just drop coverage for abortion from
all of their plans—even those provided through employers and not on the
exchanges..Today, the Senate Finance Committee rejected the Hatch amendment
to further restrict abortion by a 13-10 vote. But clearly, the issue is
not yet decided. There are several more amendments under consideration
and Republicans will continue use abortion as an obstacle to voting for
comprehensive health reform. For many of these opponents of reform,
achieving common ground is not a high priority and they will continue
to spread mistruths about abortion and health reform.

Ruth Marcus, writing in Real Clear Politics
points out the most egregious of these campaigns, including the widely
disseminated charge from the National Right-to-Life Committee that
Obama is pushing for “federal funding of abortion on demand” and a
television ad broadcast by the Family Research Council that shows an
older couple -- Harry and Louise on Medicare -- sitting at their
kitchen table and worrying about how to afford a needed operation. The
older man says, “They won't pay for my surgery, but we're forced to pay
for abortions." Using scare tactics that mix the fear of draconian
Medicare cuts with the fear of tax-payer funded abortion is a new—but
powerful—low.

In the end, it’s a shame that health care reform
had to get caught up in the irresolvable conflagration that is abortion
politics. Perhaps it was inevitable. Pro-choice groups hoped that
abortion would be included in the spectrum of comprehensive
reproductive services that would be covered under the basic
government-sanctioned plan. They also wanted to see restrictions on
federal funding for abortion lifted. Neither of these is even remotely
likely to occur as part of current health reform efforts. The goal of
conservatives was—and is—to ultimately ban abortion for all but the
most limited uses.

So, with a sigh of resignation—is this what
it feels like to reach common ground?—many pro-choice advocates are
grudgingly endorsing the Capps amendment and the Baucus bill
restrictions, in hope that they will keep the abortion issue from
derailing health reform. This underwhelming statement comes from the
Center for Reproductive Right’s website:

“The Capps Amendment
-- which means that no federal monies will be used for abortion, but
does secure access to the service--is a defensive move primarily
intended to ward off hostile Congressional amendments to women's
abortion coverage. The amendment still segregates abortion from the
larger field of healthcare, and should not be mistaken as sound policy.
After healthcare reform is enacted, we look forward to a forthright
dialogue that puts women's healthcare needs above politics."

Today,
with its rejection of the Hatch amendment, the Senate bill moves one
step closer to bypassing the most extreme challenge to abortion rights.
Now, the work must start on trying to convince moderate Democrats who
are queasy about abortion that current restrictions in the prevailing
House and Senate bills are enough.

As health reform
legislation works its way out of Congress, the list of sacrifices in
the interest of compromise grows longer. A strong public plan,
independent oversight of insurers, meaningful payment reform, immigrant
health coverage—all these provisions are at risk of being sacrificed to
some vague notion of achieving bipartisan support for health reform.
Now, we can add comprehensive reproductive health coverage to this
list. Are we getting closer to common ground?